Clarke v. Horry County Council

United States District Court, D. South Carolina, Florence Division

May 23, 2017

Tyler Clarke, Plaintiff,v.Horry County Council, et al., Defendants.

ORDER

R.
Bryan Harwell United States District Judge.

This
matter is before the Court on Plaintiff's untimely
objections to the Report and Recommendation (R & R) of
United States Magistrate Judge Thomas E. Rogers,
III.[1]See ECF Nos. 49 & 64. The Magistrate Judge
recommends that the Court grant in part and deny in part
Plaintiff's Motion to Dismiss Defendant South Carolina.
See ECF No. 27.

Standard
of Review

The
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1).

The
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of timely filed specific objections to the R & R, the
Court reviews only for clear error, Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005), and the Court need not give any explanation for
adopting the Magistrate Judge's recommendation. Camby
v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

Objections
to an R & R must be filed within fourteen days of the
date of service. See 28 U.S.C. § 636(b);
Fed.R.Civ.P. 72(b)(2). When service of the R & R is made
by mail (as in this case), the objecting party has three
additional days to file objections. See Fed. R. Civ.
P. 6(d). A paper is filed when it is delivered to the Clerk
(or a judge), not when it is mailed. See Fed. R.
Civ. P. 5(d)(2).

Discussion

The
Magistrate Judge entered the R & R on April 26, 2017, and
the Clerk mailed Plaintiff a copy of the R & R that same
day. See ECF Nos. 49 & 50. Plaintiff's
objections were therefore due by May 15, 2017.[2]Id.
However, the Court did not receive Plaintiff's objections
until May 17, 2017. See ECF No. 64 (timestamp by the
Clerk). Thus, Plaintiff's objections are untimely.

“[I]n
the absence of a timely filed objection, a district court
need not conduct a de novo review, but instead must
‘only satisfy itself that there is no clear error on
the face of the record in order to accept the
recommendation.'” Diamond, 416 F.3d at 315
(quoting Fed.R.Civ.P. 72 advisory committee's note). The
Court has reviewed the record in this case, including the R
& R and Plaintiff's Motion to Dismiss Defendant South
Carolina. Having done so, the Court discerns no clear error
and therefore will adopt and incorporate the R & R by
reference.

Conclusion

After a
thorough review of the record in this case, the Court finds
no clear error and therefore adopts and incorporates by
reference the R & R [ECF No. 49] of the Magistrate Judge.
Accordingly, the Court GRANTS IN PART AND DENIES IN
PART Plaintiff's Motion to Dismiss Defendant
South Carolina [ECF No. 27]. The Court
DISMISSES Defendant State of South Carolina
from this action without prejudice. The Court
DENIES Plaintiff's Motion to the extent
Plaintiff asserts termination of said Defendant renders the
entire case in proper form for authorization of service.

IT
IS SO ORDERED.

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